RECORD OF PROCEEDINGS 

AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS 

 

IN THE MATTER OF: DOCKET NUMBER: BC-2009-00001 

 COUNSEL: 

 HEARING DESIRED: YES 

 

_________________________________________________________________ 

 

APPLICANT REQUESTS THAT: 

 

1. He be retired for length of service with an effective date of 
15 Feb 99 versus receiving a permanent disability retirement. 

 

2. As an alternative, he be retired under Secretarial Temporary 
Early Retirement Authority (TERA) with an effective date of 
15 Apr 95. By amendment at Exhibit F, applicant requests a date 
be rendered in which he would qualify under TERA. 

 

_________________________________________________________________ 

 

APPLICANT CONTENDS THAT: 

 

In a seven page memorandum (with attachments), the applicant’s 
counsel makes the following key contentions: 

 

1. The applicant was cleared for world-wide deployment without 
restriction on 20 Apr 92; there was no change in his physical 
condition when he met the Informal Physical Evaluation Board 
(IPEB) in 1993. 

 

2. At the time the applicant retired he was fit for duty; 
however, he was not counseled on his rights prior to accepting 
the findings of the IPEB. By accepting the findings of the IPEB 
without counsel he was not afforded the opportunity to finish his 
Air Force career and retire with 20 years of service. 

 

3. He suffered from a mental disability which interfered with his 
ability to weigh his options or at least explore his rights to 
challenge the findings of the IPEB; thus, making his decision to 
accept the findings of the IPEB involuntary. He was under duress 
when he accepted the findings. 

 

4. The three year filing deadline should be waived in the 
interest of justice and due to the applicant not being in the 
right state of mind until 2008, after finally being properly 
diagnosed and treated for his mental disability. 

 

5. He does not dispute having physical disabilities; however, he 
was able to perform his duties and responsibilities for the grade 
and office he was assigned. 

 


6. On 11 Jun 93, in a Medical Evaluation Board (MEB) examination, 
the applicant reported he felt both his knees were slowly getting 
worse; however, he was still able to perform his job as there 
were no physical activities required. Shortly thereafter, the 
Department of Veterans Affairs (DVA) evaluated his medical 
condition and determined the x-rays were normal, and there were 
no clinical abnormalities of either knee except for crepitus and 
tenderness to pressure on the patella. 

 

7. The Physical Evaluation Board Liaison Officer (PEBLO) did not 
counsel the applicant on his right to request a Formal PEB 
(FPEB). Had he requested an FPEB he would have had the 
opportunity to appear before the board with an appointed military 
counsel or counsel of his choice. 

 

8. Further specific details can be found in Exhibit A. 

 

In a three page personal statement, the applicant makes the 
following key contentions: 

 

1. He did not become aware of his rights regarding the MEB 
process until early 2008. The DVA determined he was unemployable 
in Sep 07 with a permanent status rating for his medical 
condition of bipolar disorder with major depression. He received 
an overall 70 percent disability rating of which 50 percent is 
rated for his bipolar disorder alone. He feels this is 
noteworthy due to his mental health at the time of the PEB in 
1993. 

 

2. He believed he would not meet another PEB due to being placed 
on a permanent profile for his knees with a stipulation that he 
be evaluated annually to ensure his medical condition had not 
worsened. He believes his knee problems did not get worse since 
the first PEB/MEB in 1989. 

 

3. Since he was world-wide qualified up until as late as Feb 93 
and performing all duties as assigned, he does not understand why 
the PEB/MEB convened since there was absolutely no change in the 
condition of his knees. He would have continued in the Air Force 
had it not been for receiving a medical retirement. 

 

4. In Nov 04, he was removed from his job due to his psychiatric 
condition which he believes is the direct result of his bipolar 
disorder. 

 

5. Further specific details can be found in Exhibit A. 

 

In support of his submission, applicant provides a copy of his 
counsel’s memorandum, a copy of his personal statement, a copy of 
excerpts from his medical records (including a copy of his 
PEB/MEB documentation), a copy of an email, and a copy of his 
Enlisted Performance Reports (EPRs). 

His complete submission, with attachments, is at Exhibit A. 

 


_________________________________________________________________ 

 

STATEMENT OF FACTS: 

 

The applicant enlisted in the Regular Air Force on 13 Feb 79. He 
was progressively promoted to the grade of technical sergeant, 
having assumed that grade effective and with a date of rank of 
1 Aug 91. 

 

An MEB convened on 29 Mar 89 and returned the applicant to duty 
after evaluating him for bilateral patellfemoral syndrome. On 
18 Jun 93, the applicant was placed on 4T physical profile for: 
1) severe chronic progressive chrondromalacia patella/patella 
femoral syndrome (there had been no improvement in his condition 
in eight years and his physician doubted there would be any 
significant improvement possible in the future); 2) allergic 
asthma & rhinitis – diagnosed as mild and well controlled, 
3) multinodular goiter which was controlled with synthroid 
suppression, and 4) history of major depression which was found 
to be in remission. On 25 Jun 93, he was referred to a PEB for 
the aforementioned diagnosis and evaluation. An IPEB convened on 
16 Jul 93 and recommended he be permanently retired with a 
40 percent disability rating for a diagnosis of severe chronic 
progressive chondromalacia patella/patellow-femoral syndrome. On 
2 Aug 93, the applicant agreed with the findings and recommended 
disposition of the IPEB. The Secretary of the Air Force directed 
the applicant be retired under the provisions of 10 USC 1201 with 
an effective date of retirement of 12 Oct 93. He received a 
permanent disability retirement after serving for 14 years and 
8 months on active duty. 

 

_________________________________________________________________ 

 

AIR FORCE EVALUATION: 

 

AFPC/DPSD recommends denial. DPSD states since the applicant 
concurred with the findings of the IPEB a special order was 
issued retiring him with a permanent disability effective 12 Oct 
93. The fact that a person may have a medical condition does not 
mean the condition is unfitting for continued military service. 
To be unfitting, the condition must be such that it alone 
precludes the member from fulfilling their military duties. DPSD 
notes the DVA disability evaluation system (DES) is charged by 
law to pick up where the Air Force leaves off once a member is 
separated or retired. 

 

The DPSD complete evaluation is at Exhibit C. 

 

AFPC/DPSOR recommends denial. In a four page evaluation, DPSOR 
provides excerpts of parts of the law that discuss the definition 
of certain Acts and their rationale on how the applicant does not 
qualify for consideration under them. DPSOR states the 
applicant’s request is not timely and he does not provide any 
justification for the Air Force to make a decision contrary to 


law. The applicant was not returned to duty; therefore, he was 
not allowed to reach 20 years of active duty in order to be 
eligible for a length of service retirement. Also, under 
provisions of 10 USC 8914, members were subject to possible 
recall to active duty under 10 USC 688 when retiring under 10 USC 
8914. As such, because he was found unfit he was no longer 
world-wide qualified. 

 

The DPSOR complete advisory is at Exhibit D. 

 

_________________________________________________________________ 

 

APPLICANT'S REVIEW OF AIR FORCE EVALUATION: 

 

In a five page rebuttal, the applicant’s counsel states the USAF 
Physical Disability Division’s advisory opinion is not accurate. 
The advisory is not a valid evaluation of his condition since it 
was made four years prior to the findings of the IPEB and refers 
to the applicant as not being able to walk more than one mile and 
unable to do any impact activity at all. In fact, the applicant 
was able to continue to perform his duties and responsibilities 
as necessary as there were no physical activities required. The 
advisory fails to acknowledge his superior duty performance as 
reflected in his evaluations. The advisory states the applicant 
had full range of motion that clearly shows his condition was not 
unfitting. The applicant is not contending that he signed in the 
block accepting the findings from the IPEB; however, he asserts 
he suffered from a mental condition and was not properly 
counseled IAW the governing regulations, therefore, his decision 
was made under duress. 

 

The USAF Directorate of Personnel Services, Retirement Programs 
and Policy Section, advisory focuses on the alternative relief 
requested. As such, if the applicant was inaccurately found 
unfit and wrongly medically retired he should have been 
considered eligible for a 20 year active duty retirement as he 
would have reenlisted and completed the proper length of service. 
In the rebuttal, attention is brought to the TERA and how the 
applicant would qualify for TERA. It also mentions, had the 
applicant been allowed to complete 20 years of service he would 
have been competitive for promotion and would have retired for 
length of service. The applicant’s counsel cites that a key 
error in the advisory is that it assumes the AFBCMR will not 
grant relief and believes the applicant was never afforded his 
rights to a FPEB due to not being properly counseled. 

 

 

Counsel’s complete rebuttal is at Exhibit F. 

 

_________________________________________________________________ 

ADDITIONAL AIR FORCE EVALUATION: 

 

The BCMR Medical Consultant recommends denial. The Medical 
Consultant states that although the Defense Department policies 


governing fitness determinations at the time of the applicant’s 
separation indicated that the inability to deploy could be the 
sole basis for an unfit finding, and although the applicant has 
indicated that his job did not require mobility or deployment, 
the BCMR Medical Consultant opines that the Boards acted properly 
in assessing the applicant’s suitability for retention and long-
term value to the Air Force. The decision likely took into 
account the physical assessment by the applicant’s medical 
provider who believed the applicant’s medical condition was 
unlikely to improve in the future. The BCMR Medical Consultant 
opines that based on the evidence of record, the applicant has 
not met the burden of proof that an error or injustice occurred 
that warrants a change in his record to reflect that he was 
retained on active until he completed 20 years of service 
rendering him retirement eligible. 

 

The BCMR Medical Consultant complete evaluation is at Exhibit G. 

 

_________________________________________________________________ 

 

APPLICANT'S REVIEW OF ADDITIONAL AIR FORCE EVALUATION: 

 

A copy of the BCMR Medical Consultant’s evaluation was forwarded to 
the applicant on 21 Sep 09 for review and comment within 30 days. 
As of this date, this office has not received a response. 

 

_________________________________________________________________ 

 

THE BOARD CONCLUDES THAT: 

 

1. The applicant has exhausted all remedies provided by existing 
law or regulations. 

 

2. The application was not timely filed; however, it is in the 
interest of justice to excuse the failure to timely file. 

 

3. Insufficient relevant evidence has been presented to 
demonstrate the existence of error or injustice. We took notice 
of the applicant's complete submission in judging the merits of 
the case and do not find that it supports a determination that 
his permanent retirement because of physical disability in 1993 
was improper or contrary to the provisions of the governing 
regulations. Other than his own assertions, the applicant has 
provided no evidence that would lead us to believe the assessment 
of his medical condition was based on factors other than accepted 
medical principles. The evidence of record appears to indicate 
that the applicant was afforded due process through the 
disability evaluation system and the applicant has provided no 
evidence that would lead us to believe otherwsie. We therefore 
agree with the recommendation of the Air Force offices of primary 
responsibility and the BCMR Medical Consultant’s detailed 
comments and adopt their rationale expressed as the basis for our 
decision. With respect to the applicant’s request to be retired 
under the TERA, we agree with the opinion and recommendation of 


the Retirement Programs and Policy Section that since the TERA 
program was not offered at the time of the applicant’s 
retirement, he is ineligible for retirement under this program. 
Therefore, we find no basis to recommend granting the relief 
sought. 

 

5. The applicant's case is adequately documented and it has not 
been shown that a personal appearance with or without counsel 
will materially add to our understanding of the issue involved. 
Therefore, the request for a hearing is not favorably considered. 

 

_________________________________________________________________ 

 

THE BOARD DETERMINES THAT: 

 

The applicant be notified that the evidence presented did not 
demonstrate the existence of material error or injustice; that 
the application was denied without a personal appearance; and 
that the application will only be reconsidered upon the 
submission of newly discovered relevant evidence not considered 
with this application. 

 

_________________________________________________________________ 

 

The following members of the Board considered AFBCMR Docket 
Number BC-2009-00001 in Executive Session on 22 Oct 09, under the 
provisions of AFI 36-2603: 

 

 , Vice Chair 

 , Member 

 , Member 

 

The following documentary evidence was considered: 

 

 Exhibit A. DD Form 149, dated 26 Oct 08, w/atchs. 

 Exhibit B. Applicant's Master Personnel Records. 

 Exhibit C. Letter, AFPC/DPSD, dated 13 Mar 09. 

 Exhibit D. Letter, AFPC/DPSOR, dated 23 Mar 09. 

 Exhibit E. Letter, SAF/MRBR, dated 3 Jun 09. 

 Exhibit F. Letter, Applicant’s Counsel, dated 1 Jul 09. 

 Exhibit G. Letter, AFBCMR Medical Consultant, dated 17 Sep 09. 

 Exhibit H. Letter, SAF/MRBR, dated 21 Sep 09. 

 

 

 

 

 

 Vice Chair